Appeal of City of Aberdeen, s. 11982
| Decision Date | 28 September 1978 |
| Docket Number | Nos. 11982,12025,s. 11982 |
| Parties | 99 L.R.R.M. (BNA) 3038 Appeal of the CITY OF ABERDEEN, a Municipal Corporation, from the Decision of Dennis W. Finch, Director of the Division of Labor and Management Relations, South Dakota Department of Manpower Affairs. LOCAL 446, PROFESSIONAL FIREFIGHTERS ASSOCIATION, Petitioner, Appellant and Cross-Respondent, v. CITY OF ABERDEEN, South Dakota, Respondent and Cross-Appellant. |
| Court | South Dakota Supreme Court |
Dennis Maloney of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for petitioner, appellant and cross-respondent.
Charles B. Kornmann of Richardson, Groseclose, Kornmann & Wyly, Aberdeen, Robert D. Miller, Aberdeen, for respondent and cross-appellant.
Under the Public Employee Union Law, SDCL 3-18, a union sought formal recognition by the City of Aberdeen as the bargaining representative for all city firemen, except the Chief and assistant chiefs. The City refused, asserting that the firemen could be represented by the same union which the City had already recognized as the bargaining representative for certain other city employees.
After hearing under SDCL 3-18-4, the Director of the Division of Labor and Management Relations authorized the firemen On a related issue, we affirm the holding of the Director and of the circuit court that the Aberdeen Fire Department captains and lieutenants are not supervisors under the applicable statute and regulations, and are therefore not barred from affiliating with the same bargaining unit as the firemen.
to proceed as a separate bargaining unit. On the City's appeal to the circuit court under the Administrative Procedure Act, SDCL 1-26, the circuit court reversed. On this appeal, we hold the separate unit proper under the criteria set out in SDCL 3-18-4, part of the Public Employee Union Law, and therefore reverse the circuit court judgment.
The Professional Firefighters Association, Local 446 (Union) petitioned the South Dakota Department of Labor, Division of Labor and Management Relations, for formal recognition and certification as the bargaining representative for all Aberdeen firemen except the Chief and assistant chiefs. The City of Aberdeen (City) filed a written objection to the proposed bargaining unit. After a hearing, the Director of the Division entered findings, conclusions, and an order that an election be conducted to determine the bargaining representative for all firemen of the City Fire Department, excluding the Chief and assistant chiefs. The City appealed to the circuit court from the Director's decision.
Upon review under the Administrative Procedure Act, the circuit court entered findings, conclusions and judgment that there should be only one bargaining unit for all Aberdeen city employees. The circuit court affirmed the decision of the Director that captains and lieutenants in the Fire Department are not supervisory personnel and thus that they may affiliate with the same bargaining unit as the firemen. The Union appeals to this Court from the circuit court judgment denying the firemen a separate bargaining unit, and the City cross appeals from the judgment of the circuit court holding that Fire Department captains and lieutenants are not supervisory personnel.
The two issues presented by this appeal are:
We conclude that the circuit court erred in holding that the city firemen may not be represented by a separate bargaining unit. SDCL 3-18-4, part of the Public Employee Union Law, sets out factors which are to be considered when a determination of the appropriate public employee bargaining unit is made. 1 The statute instructs the Department of Labor hearing From the evidence produced at the hearing before the Director, he found that employees of the Fire Department, except the Chief, have an average 56 hour work week. This week is based on a nine-day cycle in which they are on duty for 24 hours the first day, the third day, and fifth day, off-duty 24 hours on the second and fourth day, with the sixth through the ninth day off. The 24 hour shifts commence at 8:00 a. m.
officer (in this case, the Director of the Division of Labor and Management Relations) to Consider the listed factors and Other relevant factors. We do not construe the statute to require that there necessarily be evidence in the record before the Director as to each factor nor that a separate finding must invariably be made by the Director as to each factor.
In contrast to the above schedule, almost all other city employees work on a standard forty-hour week from 8:00 a. m. to 5:00 p. m. Monday through Friday. There is no interchange between firemen and other city employees. A hiring, promotion, and firing system separate from that used for other city employees is used for firemen.
The Director concluded that the job duties of firemen in Aberdeen are substantially different from those of other city employees, and that hours of work differ so substantially that it is not possible to find a community of interest between firemen and other city employees.
The Supreme Court of Nebraska recently considered whether the Nebraska Legislature could lawfully classify firemen and policemen differently from other public employees. Although not confronted with the precise question before us, the observation of the Nebraska Supreme Court describing the duties of police and firemen is pertinent:
Basically these two groups have duties, obligations, and responsibilities totally different from those of other public employee groups. They are primarily responsible for the protection of life and property. They are on a perpetual emergency basis. Their memberships are closely knit and in working together their lives are often dependent on fellow members. A close kinship between the members and their officers develops. This closeness and a recognition of the elements mentioned promotes efficiency and willingness to work together. Local U. No. 647, etc. v. City of Grand Island, 196 Neb. 693, 695, 244 N.W.2d 515, 517 (1976).
By SDCL 3-18-4 the Legislature directed that an issue concerning the appropriate bargaining unit under the Public Employee Union Law was to be decided, after hearing, by a hearing officer of the Division of Labor and Manpower Affairs. The decision is reviewable by the circuit court under the Administrative Procedure Act, but only to the extent provided in SDCL 1-26-36. We review the judgment of the circuit court in such case under the standard set out in Piper v. Neighborhood Youth Corps, S.D., 241 N.W.2d 868 (1976). We find the Director's decision supported by substantial evidence on the whole record and conclude that such evidence, when evaluated in the light of the factors to be considered under SDCL 3-18-4, requires affirmance of the Director's decision. A separate bargaining unit should be authorized for the firemen.
We note that the circuit court judicially noticed the ordinances of the City of Aberdeen, which ordinances established uniform policies for sick leave, vacations, wages, insurance, retirement, grievances, and other matters. The City argues that since the ordinances apply to the firemen and other city employees alike, that a single bargaining unit would promote efficient administration of government, one of the factors included in SDCL 3-18-4. Although the factors to be considered by the administrative agency were not statutory in Nebraska, as here, the same argument was rejected by the Supreme Court of Nebraska in City of Grand Island v. American Fed. of S., C., & M. Emp., 186 Neb. 711, 714, 185 N.W.2d 860, 863 (1971). In City of Grand Island v. American Fed. of...
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Oberle v. City of Aberdeen
...We affirm in part and reverse in part. The union in this case was organized after the decision of this court in Appeal of City of Aberdeen, 270 N.W.2d 139 (S.D.1978), wherein this court reversed a circuit court decision, thus affirming Department's decision to allow the firemen to organize ......